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Napolitano, O'Reilly, Limbaugh & the ACLU on the Same Side - Has the World Ended Yet?

Reported by Marie Therese - May 3, 2005

As many of you know, the Florida Supreme Court decided by a vote of 4-3 not to review the decision rendered by Florida's 4th Circuit Court of Appeals in the case involving release of Rush Limbaugh's medical records. In effect, this means that the lower court ruling stands and, unless he appeals it to the Supreme Court, Mr. Limbaugh's records will be unsealed and used as evidence in a case of "doctor shopping." In a rare convergence of polar opposites, the ACLU filed a brief on behalf of Mr. Limbaugh. FOX News Senior Judicial Analyst, Judge Andrew Napolitano, concluded on yesterday's O'Reilly Factor that the Florida decision was a NOT a politically motivated attack on Mr. Limbaugh.

O'REILLY: The ACLU has sided with the conservative commentator, saying a person's medical records should not be given to prosecutors unless there's a specific reason why. But three [sic - it was actually two] judges appointed by a Democrat and one Republican-appointed judge disagreed. So, right now, Limbaugh's records are in play..."

He asked Judge Napolitano if this was a "political decision" by the court.

NAPOLITANO: We thought it was going to be a political decision, because Rush Limbaugh is so controversial. But, I don't think it was. Of the three dissenting judges - remember the Supreme Court of Florida, seven [sic - it was actually four] justices decided not to hear the appeal, effectively putting into play the Appelate Court decision, which said his medical records are fair game ... The three dissenters are an apointee of Jeb Bush, an appointee of the prior Governor, Lawton Chiles, and Jeb Bush - this appointment was made after Jeb was elected but before he was inaugurated - and the Chief Justice of the Florida Supreme Court, a very, very liberal jurist, Chief justice Pariente.... She sided with the ACLU and with Rush. In my opinion it was not political, it was ideological ... She is in favor of upholding the right to privacy guaranteed in the Florida Constitution.

O'REILLY: Well, is it a right to privacy issue here? Is Limbaugh in the right?

NAPOLITANO: Limbaugh is absolutely in the right. The Florida Constitution imposes on anyone wanting anyone else's private records - whether they're financial or medical - the obligation of demonstrating why, and giving the person whose records they seek the opportunity to contest this. When Limbaugh was told that his records had been seized, he asked for a contest. He asked to present evidence challenging the credibility of the people on whose testimony the judge relied when he signed the search warrant. The judge wouldn't give it to him. To this day, he has never been allowed to have a hearing on whether or not the state is entitled to his medical records.

O'REILLY: Does the Constitution of Florida say you are entitled to a hearing?

NAPOLITANO: The statutes written in furtherance of the Constitution say you're entitled to a hearing.

O'REILLY: Then why would four Supreme Court justices rule that way?

NAPOLITANO: I think they don't want to get involved until after Rush is charged. Remember, he's not been charged with a crime ..

O'REILLY (overtalks last 3 words): He's not been charged with anything, right?

NAPOLITANO: This case is not a State vs Limbaugh. This is Limbaugh vs the State. He has sued the State to stop them from seizing his records. But, this is very bad ...

O'REILLY (interrupts): They've already seized them, but they're sealed, right?

NAPOLITANO: Correct. If they can do this to a public figure, whose ability to hire lawyers and challenge the state is almost limitless, they can do this to anybody. And the laws in Florida say they can't!

O'REILLY: Now, why would the State want to do that? Why would they want to seize ... his medical records on a beef, a prescription drug beef, which is a low-level beef, you know?

NAPOLITANO: So-called "doctor shopping." I think they're after him because of who he is.

O'REILLY: Really? You really believe that?

NAPOLITANO: I do. The prosecutor is a Democrat, a liberal Democrat, very active in politics. He was very active in the Gore vs Bush fiasco of 2000.

O'REILLY: So. Limbaugh's right when he says ...

NAPOLITANO: Limbaugh is right that he is in political crosshairs and it's wrong that that should happen to anybody - Limbaugh or anybody else - because the law should be enforced based upon the government's needs not on the basis of enhancing the career of the prosecutors.

O'REILLY: Would the government need the medical records to prove there was some kind of wrongdoing [in] a prescription [drug] area?

NAPOLITANO: Oh, absolutely - they would. So the government needs the medical records before they can charge him, but the government - like everybody else - has to follow the Florida statute, which says "Mr. O'Reilly, we want your medical records. We're going to hold a hearing as to whether or not we're entitled to them."

O'REILLY: I see. So Roy Black - who is Limbaugh's primary attorney in this - should have a chance to say to a hearing in front of a court - a judge - "Look. You don't need these records. This is what my client took the drugs for."

NAPOLITANO: Correct. Correct. "And the person on whose testimony you're relying is not believeable and here's why .."

O'REILLY: ... Why would you want his whole record? Why not just the prescription records? Why would you want his whole ...

NAPOLITANO: Well, the government probably doesn't know what the records looked like at the time. They go for them so they ask for everything.

O'REILLY: It's just a fishing expedition.

NAPOLITANO: Absolutely. They have everything about his ...

O'REILLY: Yeah.

NAPOLITANO: ... medical history and they're not entitled to any of it!

O'REILLY: That's wrong. Alright, Judge. Thanks very much.

COMMENT

I just love how flexible O'Reilly and the Judge are in their interpretations of the law.

O'Reilly is so very careful to give Rush Limbaugh all the benefits of the doubt but demands on other days and at other times the ouster of Ward Churchill, Paul Howard and Brad King based on hearsay, innuendo and O'Reilly's desperate need to feed the voracious beast that is his audience.

In March 2005 Napolitano actually defended Kansas Attorney General Phill Kline's attempt to subpoena an abortion doctor's records in a "fishing expedition" of his own.

Personally I side with the ACLU on this one. Much as I would like to see Limbaugh get his comeuppance, it should not be done at the expense of privacy laws that protect ALL of us.

You can read more about the ACLU's position on their website: www.aclu.org

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